Family Lawyer – First Point of Contact: A family lawyer is usually the first person you should contact. The McNamara family law team can provide you with legal advice on your rights, obligations, and the best course of action regarding property division, child custody, spousal support, and the divorce process itself.
Counsellor or Mediator – Alternative or Concurrent Contact: If you are looking to resolve matters amicably, especially when children are involved, a counsellor or mediator might help in reaching agreements without going to court. Family dispute resolution services can also assist with mediation.
Financial Adviser – Consider Consulting: For advice on dividing assets, managing finances post-separation, and understanding the financial implications of a divorce, a financial adviser can be very helpful.
Support Services – Emotional Support: Organisations like Relationships Australia and Lifeline provide emotional support and guidance through the process.
To apply for a divorce in Australia:
Eligibility: You must be separated for at least 12 months. If married under two years, counseling is required.
Grounds: Australia uses a no-fault system, citing “irretrievable breakdown” as the sole ground.
Documents: Prepare your marriage certificate and, if needed, a counseling certificate.
File: Submit your application online or on paper, either jointly or alone.
Serve Papers: If filing alone, ensure your spouse receives the papers.
Finalisation: If granted, the divorce is final one month after the order.
Consult McNamara Law for personalised guidance, especially regarding property and child arrangements.
Charmagne completed her Bachelor of Laws and Diploma of Legal Practice in 2008 at the Queensland University of Technology and has been a Solicitor since 2008 practicing exclusively in Family Law. The wide experience gained across the different areas including property settlement, parenting, Child Support, Spousal Maintenance and Domestic Violence issues makes her a well-rounded senior practitioner whose services are much sought after. Charmagne who takes after her father who is a very senior and respected Legal Practitioner in Warwick, joined our firm in 2016. She shares our firm’s values on supporting the community and works out of our Springfield Office.
Charmagne is dedicated to meeting client expectations and gaining successful results for her clients. She has extensive experience in all areas of family law, including complex parenting and financial matters and domestic violence matters, in particular, cases involving the recovery of children. She prides herself on successfully resolving matters outside of Court if appropriate, however, has also been involved in all stages of matters including court appearances and mediations.
She understands that family law is a daunting process and has been commended by her clients on her ability to be a welcomed support to them throughout every step of the process.
Charmagne has been involved with presentations at secondary schools to provide education to the students on her career and what they need to do to reach their goals.
As a dispute resolution expert she brings a client focussed desire to resolve matters efficiently and cost effectively for the client without adversarial intervention.
Away from work Charmagne is a devoted Mother who enjoys spending time with her children. She is a great exponent of the art of karaoke, playing pool and is a keen follower of the fortunes of the Broncos and an avid supporter of the Maroons.
Silvia Lee is a valuable member of McNamara Law’s family law team, having joined the firm in 2024. Silvia graduated from her dual degree in a Bachelor of Laws and a Bachelor of Creative Industries (Dance) from Queensland University of Technology (QUT) in 2018. Silvia’s professional experience has exposed her to opportunities to work with a diverse range of legal professionals, including solicitors, barristers, and a Judge of the Federal Circuit Court (as it was then known). After graduating, Silvia completed her Graduate Diploma in Legal Practice (Practical Legal Training) at QUT. Subsequently, Silvia was admitted to the Supreme Court of Queensland in 2019.
Silvia brings a wealth of experience across a spectrum of legal disciplines, encompassing family, criminal, property, commercial, litigation, and wills and estates law. Having gained extensive experience across diverse areas of law, Silvia has developed a comprehensive understanding of potential issues that can influence family law matters. Silvia aims to provide compassionate and strategic legal representation to
clients navigating sensitive family law matters, including divorce, parenting disputes and property settlements, with a goal to empower clients with clear and practical advice during emotionally challenging times. Silvia is a dedicated Solicitor and strives to work with compassion and integrity at all times.
Outside of the office, Silvia continues to pursue her passion for dance and competitive cheerleading. Silvia is a cheer coach and an athlete. Her dedication and hard work towards cheerleading granted her the unique opportunity to represent Australia in the 2017, 2019 and 2023 IASF Cheerleading World Championship hosted in the USA. To date, her greatest achievement was placing Top 5 at the World Championship. Silvia’s competitiveness in cheerleading has taught her to work hard, think creatively, and work together as a team to achieve greatness.
In addition to her sporting accomplishments, Silvia also enjoys rock climbing, karaoke and spending family time with her grey tabby cat (of 20+ years old) and fiancé.
Rozze graduated from the Queensland University of Technology in 2019 with a Bachelor of Laws and completed her Graduate Diploma in Legal Practice in 2020. Following admission to the legal profession in 2020, she has been practising solely in Family Law. She joined our firm in June 2024.
Rozze has extensive experience in various areas of family law including divorce, parenting disputes, property and financial settlements, prenuptial matters, and urgent recovery orders. She is an invaluable member of our team and the community.
Rozze builds client relationships through mutual trust and respect. She values open communication and ensures that her client’s opinions are heard and considered. She is particularly motivated to resolve matters without the court’s intervention where possible.
Away from McNamara Law, Rozze enjoys staying fit and spending quality time with her family, including her beloved pets.
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Divorce means the ending of a marriage, and is separate to doing a property division and to making parenting arrangements for children.
In Australia there is a “no fault” system of divorce with the only condition to seeking a Divorce is that the parties to the marriage have been separated for 12 months.
Once you have been separated for 12 months you can institute proceedings for Divorce. A joint application (signed by both parties) can be made if the parties agree to make the application. If there is no agreement, you can file a sole divorce application as soon as the 12 months period after separation has expired.
N.B once your Divorce becomes absolute that you only have 12 months in which to institute proceedings for property settlement otherwise you will only be able to seek property settlement if you are given a time extension by leave of the Court (which may be refused or granted depending on the circumstances).
Divorce Applications can be made while parties have been separated but living under the same roof, or where there has been a period of resuming the relationship and further separation.
A Divorce Application is filed in the Federal Circuit and Family Court of Australia and there is a filing fee payable to the Court. In certain circumstances the Applicant can apply to the Court for a reduction in the filing fee.
Once the Application is filed in the Court, the registry will nominate a Court date.
If the Application is made solely by one party without the other party signing the application, it will need to be served on the other party. Service can initially be attempted either personally or by post, however, if the party being served does not sign and return an acknowledgement of service they will have to be served personally.
If you are the sole Applicant, and there are children under the age of 18, you will need to appear at the Court date. If there are no children under 18 the Court can consider the application on the papers without the need for either party to appear, as long as service on the other party has been proved.
If you are a Respondent to an Application for Divorce and have been served with the Application, you only need to appear in Court or file material in response to the application if you object to the Divorce being granted or you do not agree with some of the facts in the Application and you would like the Court to note your version of the facts.
One month after the Court date the Divorce becomes absolute when the Divorce Order issues. The Court then uploads the Divorce Order on the Commonwealth Courts Portal for the parties to download.
When there is a dispute over children, The Family Law Act sets out what the Court considers when determining what is in the best of interest of children.
There is one primary consideration:
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court will prioritise the protection of children from a risk of harm over the need for them to have a meaningful relationship with both parents.
We at McNamara Law endeavour to assist you to reach an outcome that will ultimately benefit your children and yourself in the years to come.
Courts will initially consider whether it is appropriate for both parents to make long-term decisions for the child (called equal shared parental responsibility). Sometimes it is appropriate for one parent to make long term decisions if the parents have no ability to communicate with each other for example.
If the Court puts in place equal decision making, the Court must consider what arrangements would be in the best interests of the children.
The factors considered in working out whom children will live with and what time they will spend with the other parent are very complicated and we recommend obtaining independent legal advice based on your particular circumstances.
Any Court takes the issue of family violence very seriously. Family violence does not have to involve the children for it to be a relevant consideration of the Court.
Domestic/family violence can include emotional and financial abuse, harassment, intimidation, coercive control and other inappropriate behaviour. You should carefully consider whether you should consult a solicitor to make Application for a Protection Order if you are the subject of domestic/family violence.
Going through a relationship breakdown and attempting to resolve children’s issues can be an extremely stressful time. It may be beneficial to consult your General Practitioner for some options to manage the effect of a relationship breakdown. You may be entitled to free counselling through Medicare or your health insurance. This is also particularly relevant to the children of the relationship who may be in more need of counselling than the parties themselves.
To promote stable and co-operative parenting into the future it is best for parents to agree what time the children will spend with each parent. If the parents are able to reach an agreement then parenting arrangements can be recorded in a non-binding Parenting Plan or binding and final Consent Orders. A family law solicitor will be able to advise on the best option for your particular circumstances.
However, sometimes it is not possible for parents to reach an agreement in relation to the time that the children are going to spend with each parent. In these circumstances the parents are required to first consider mediation either with the assistance of a family law solicitor, through a Family Dispute Resolution Centre or through a service that offers mediation such as Relationships Australia, the Salvation Army or Lifeline.
If no agreement is reached, then you would have to consider instituting Court proceedings. For disputes involving children you are required to file a 60I Certificate from a Family Dispute Practitioner to certify that you have attempted mediation.
In some circumstances, such as urgency, the existence of family violence or that the children are in a situation that is dangerous, it may not be appropriate for the parties to attend mediation. In those circumstances the relevant party can apply directly to the Court, and it is up to the Court whether they deem that your matter is suitable to be listed without the need for a 60I Certificate.
Serious thought should be given to the issue of instituting Court proceedings as it can be a long drawn out, emotionally draining and extremely costly exercise to go to Court and argue over arrangements for what time the children will spend with each parent
A Binding Financial Agreement (commonly referred to as a BFA) is a useful tool that allows couples, whether married or de facto, to formally record how to divide their assets, financial resources and liabilities in the event their relationship breaks down.
A BFA can be done prior to the commencement of a relationship, during a relationship, or after a relationship by agreement of the parties.
The effect of a BFA is to make a binding contract that effectively displaces or overrules the Family Court process (if the BFA has been validly made).
Protecting assets which you have worked hard to accrue prior to entering into the relationship;
Protecting your future income in the event the relationship breaks down;
Taking proactive steps so that both parties to the relationship can implement their own ‘rules’ as to how their assets, liabilities and financial resources which they bring into the relationship are dealt with rather than subjecting themselves to a decision imposed upon them by the Court;
To protect or quarantine specific assets, such as an inheritance obtained prior to entering into the relationship.
Binding Financial Agreements can be used to formally divide assets after the end of a relationship, and are commonly used to provide, or to prohibit, spousal maintenance being payable by the parties.
Binding Financial Agreements can be entered into by both heterosexual and homosexual couples, in addition to both de facto and married couples.
It is important for both yourself and your partner to seek expert advice when considering entering into a Binding Financial Agreement to ensure that the document which you are paying for is ultimately enforceable at law pursuant to the Family Law Act.
If either party to a Binding Financial Agreement does not obtain appropriate advice prior to the execution of the document, the Court will make a finding that the Binding Financial Agreement will be found to be not a binding document. This could then result in all assets (including those brought into the relationship) being considered to be assets of the relationship and available to be taken into consideration in a property settlement.
The consideration and advice involved with a BFA is a big deal, as the Court has effectively allowed lawyers to write a document that avoids the Family Law Act provisions for property settlement or spousal maintenance, but only if the document is drafted and executed correctly and the parties have been appropriately advised.
Should either party to the Binding Financial Agreement attempt to challenge the validity of the document, the starting point of the Court would usually be to review the advices provided to both parties prior to entering into the document and for this reason is crucial that expert independent advice is given to both parties to the document.
In Australia, both parents to a child have an obligation to assist in financially supporting their child until they reach the age of 18. This is commonly achieved through the payment of Child Support.
When parents are able to reach a private agreement for the payment of child support, this can be in any amount mutually agreeable between both parents and can include payment for expenses which do not ordinarily fall within the scope of expenses recoverable through the Child Support Agency, such as payments for extracurricular activities, school or medical expenses.
It is also possible for parents to privately agree for one parent to directly make payments towards certain expenses for the child, such as a contribution towards the payment of private school fees directly to the school.
When parents wish to have these specific payments recorded in writing, it is possible to achieve this through a document referred to as a Binding Child Support Agreement.
Should you wish to consider entering into a Binding Child Support Agreement, both parties are required to obtain independent legal advice to explain to them the effects of the document to ensure that each party completely understands the future ramifications/obligations on each party once the document is executed.
If parents are unable to privately reach an agreement on the payment of Child Support, it may become necessary for payments to be assessed and conducted through the Child Support Agency.
When calculating the appropriate amount of child support to be paid by one parent, typically the Child Support Agency will consider the following;
The Child Support Agency have an online calculator to assist parties in understanding what child support may become payable should the Child Support Agency is required to assess and collect any payable child support.
We have placed a link to this calculator below should you wish to utilise it.
https://www.humanservices.gov.au/individuals/enablers/online-estimators
In some circumstances, for instance where one party is self-employed, it may be necessary for one party to file a variation request with the Child Support Agency should a parent feel that a parties taxable income does not truly reflect their actual earning capacity.
There can be other reasons to depart from the usual child support formula, for example the child having significant medical expenses, or a parent contributing to other related costs for a child.
There are also instances where child support may be payable after a child turns 18 years of age.
When facing the breakdown of a relationship, each party’s ability to support themselves is usually forefront of the mind. Your likely entitlement to the property of the relationship and how this would affect your standard of living may even impact on your decision to separate or not.
It is difficult to make decisions about separation in a vacuum, so it is important that you seek comprehensive advice about separation and property settlement. Every relationship is unique and there is no cookie cutter or broad brush advice to be applied to every situation.
It is vitally important that you know and observe your limitation dates. A limitation date acts as a bar to prevent the commencement of legal proceedings. If you miss your limitation date you will be required to seek the leave of the court to divide property.
The limitation dates which apply to property settlements are fairly straightforward. If you are in a de facto relationship, you have two (2) years from the date of separation to commence property settlement proceedings.
If you are married, you have one (1) year from the date of divorce to file proceedings. If you have separated, we would strongly advise that you seek legal advice regarding your particular situation as soon as possible.
There is a 5 step process the Court applies to the division of the assets of a relationship as follows:
The Court decides whether it would be just and equitable to make a property division. If the Court decides it would not be just and equitable to make a property settlement in the circumstances, the Court cannot make an Order to divide the property.
The second step in the process is to identify and value the property pool. Essentially, this step requires you to ask :
Property will include real estate, vehicles, household furniture, superannuation, shares, trust funds, interests in a business or partnership, and funds in bank accounts etc. It will also include debts and liabilities including mortgages, tax debts, credit card debt, car loans, charges on property, and any other liability.
It is not unusual for parties to disagree about the value of the family home or other assets and may be necessary to appoint a professional valuer. There may be a need to have a superannuation interest or business valuation by a professional in certain circumstances.
The third step is to consider the contributions made by each party to the property pool. The contributions are classified as financial contributions, non-financial contributions and contributions to parenting and homemaking.
The fourth step is to consider the future needs of each party. Relevant factors will be such things as the age difference between the parties, their health, their earning capacity, and the care of young children.
The final step taken by a Court in property settlement matters is to decide what division is just and equitable. This involves the Court looking at the situation as a whole and deciding what division it considers fair taking into account the property pool, the parties’ contributions, the needs of the parties, and any other factor it considers relevant.
Most property settlements occur by negotiation and without the need to file proceedings. If you are able to agree on the settlement of the property, consent documents can be drafted and filed in the Court to finalise the property settlement. If the Court approves of the agreement it will make an Order in the terms of the agreement. The Order is enforceable by a Court and may provide a stamp duty exemption.
When families separate the best thing for everyone involved is to resolve any issues as amicably and early as possible.
There are many studies that show the negative impact of ongoing conflict on children and parents alike. It is often a delicate balancing act between seeking entitlements, and making a compromise to promote future harmony and calmness of life.
In some cases there are difficult legal issues that can only be decided by a Court, but in most cases it is of great benefit for the parties to access Mediation or Alternative Dispute Resolution services at an early time.
For both parenting and property matters there is a requirement that parties attend mediation and attempt to agree prior to making an Application for a Court to decide arrangements or seek orders for a property settlement. There are exceptions to this rule for urgency, family violence, risk/abuse in respect of children, failure of one party to disclose their financial position etc.
Mediation is the most common form of dispute resolution and can be done privately (with a Mediator funded by the parties) or through government subsidised agencies such as Relationships Australia or the Family Relationships Centre. There are reduced costs involved with using the government subsidised agencies, however there are often long wait times for these services.
Mediation can occur with or without the parties having legal representation, of course legal advice before, during or after mediation is recommended. Mediators do not give the parties advice, their role is to facilitate the parties discussing their issues with a view to them reaching agreement.
Mediation is confidential (unless there are statements of serious risk of harm made) and the discussion at mediation is “without prejudice”, meaning it cannot be binding to a Court.
Reducing future conflict and enabling future cooperation between parties if they agree. Going through a contested Court process usually has the opposite effect of increasing the conflict between the parties;
Some other forms of dispute resolution to avoid a contested fight in the Family Court system are:
Many people expect that when they ask a Judge to decide their case they will be delivered justice and the decision will address the issues that are important to them. The harsh reality of the Court system is that the Judge is given the task of deciding the case, and at that point the parties lose all power in the situation, as they have handed all their decision making power to the Judge. The Judge will make a decision based on applying the facts to the law, however the result will most times not be favourable to both parties, and sometimes both parties may be dissatisfied.
By using mediation or other alternative dispute resolution processes the parties keep the decision making power themselves. There are often great benefits for the children of a relationship when parties use the mediation process fully, as the parties can make all types of arrangements for parenting their children by agreement that would otherwise not be part of the usual court decision making process.
For example, at mediation the parties can agree on daily routine type matters for children such as what time would be best for bedtime, how much screen time they should have, etc.
In our experience it is always best for parties to resolve issues as soon as possible and as amicably as possible so that everyone’s life is more enjoyable.
McNamara Law is proud to announce a new way in dispute resolution. AMC, a hybrid for three well known and existing alternative dispute resolution models.
AMC is a combination of Arbitration, Mediation and Conciliation rolled into a single event giving flexibility and speed to the resolution for Family Law issues being either Parenting and/or Property.
Introducing this new threefold hybrid model of dispute resolution and taking into account the current global crisis and social distancing requirements, we at McNamara Law are proud to offer AMC to our clients through alternative measures such as teleconferencing or online platforms. This allows all parties to participate in the dispute resolution process from the comfort of their own homes or a location of their choice.
When a couple separate and they have a child or children together, a question may arise whether the father is the biological father. That you have to sort out your parenting or property settlement matters prior to filing your Application for Divorce.
This might just be for peace of mind, or it may be required to for legal issues, such as:
If a parent seeks to confirm if the father is the biological father for their peace of mind only, that parent can apply to an agency offering paternity testing by simply completing the Application for that agency and paying the fee.
The test is usually mailed to the mother/father and their samples can be collected at home. The sample is a mouth swab from that parent and the child.
Some agencies might, however, require the consent of the parent who is the legal guardian of the child, to obtain the child’s sample, and in this event, you may need to seek the consent of the legal guardian or apply for Orders in the Federal Circuit Court.
This test does not provide results that are as accurate as having both parents’ DNA swabs, and it cannot be used for legal matters, however, it is an option available if a parent requires that peace of mind that they are, in fact, the parent of that child.
There has been a recent case involving a father paying many years of child support to the mother, and after he and his new partner attempted to conceive a child, he discovered that he was incapable of conceiving children. This resulted in the mother being Ordered to pay back a sum of over $3,000 to the non-biological father.
On the other hand, a mother might wish to claim child support from the father who either refuses to pay, or refutes a claim that he is the biological father.
In these scenarios, legal testing is required which involves having the consent of both parents. The procedure involves making an Application and paying a fee. A sealed DNA kit will be mailed to each parent, and you are to both arrange to attend your doctor or a Pathologist to provide a blood test of both parents and the child. After the sample is received from the agency, the results are usually available within 5 to 10 working days.
Identification for both parties, such as a passport, is required prior to the DNA kit being sent to each parent.
If the other parent refuses to provide their consent, you will need to apply to the Federal Circuit Court for Orders for Paternity Testing. The Application to the Court will require the filing of an Affidavit and an appearance before the Court to seek the leave of the Court for an Order for testing.
Our family law team are happy to assist you, whether it be for peace of mind, for legal matters and applying to the Court, or negotiating with the other parent.
